European Union and Turkey: judicial independence at a crossroads

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“In the little world in which children have their existence”, says Pip in Charles Dickens’s Great Expectations, “there is nothing so finely perceived and finely felt, as injustice.” (…) But the strong perception of manifest injustice applies to adult human beings as well. What moves us, reasonably enough is not the realization that the world falls short of being completely just – which few of us expect – but that there are clearly remediable injustices around us which we want to eliminate.” – Amartya Sen, “The idea of Justice” (preface).

As V. Skouris [former President of the Court of Justice of the European Union (CJEU)] brilliantly explained in his speech at the conference Assises de la Justice (November 21, 2013), when analysing matters related to judicial independence, there is a traditional distinction between personal independence and substantive or functional independence. The former essentially refers to the personal qualities of the judge and is destined to ensure that in the discharge of his or her judicial function, a judge is subject to nothing but the law and the command of his or her conscience. The latter of this is the functional independence which refers also to the judicial institution as a whole; it means that the terms and conditions of judicial service are adequately secured by law so as to ensure that individual judges are not subject to any executive control. Judicial independence within the European Union legal order concerns not only the CJEU but also national courts at all levels, since national judges are also what we call in French “juges de l’Union du droit commun“.

Unfortunately, the situation in Turkey is characterized by an affront towards basic standards of judicial independence. Turkey was one of the first countries, in 1959, to seek close cooperation with the then very recent European Economic Community. This cooperation was realised in the framework of an “Association Agreement”, known as the Ankara Agreement, which was signed on September 12, 1963. The CJUE was already called to focus precisely on this Association Agreement for instance in relation to the issue of their limits (Judgement Dereci and others v Bundesministerium für Inneres, Case C-256/11, EU: C:2011:734). This associative status implies that European Union naturally concerns about matters involving Turkey, and what happens with the Turkish citizens concerns the EU citizens. However, the idea “a judge is subject to nothing but the law and the command of his or her conscience” – to use the language of V. Skouris – is today completely marginalized in Turkey as pointed out by different European entities. Some concrete examples can be provided in this regard:

I) In December 8, 2016 the European Network of Councils of Judiciary (ENCJ) decided, in General Assembly, to suspend, with no Council voting against, the observer status of the Turkish Judicial Council (HSYK). Thus the HSYK is now excluded from participation in ENCJ activities. The reasoning of the ENCJ was impressive: “it is a condition of membership, and for the status of observer, that institutions are independent of the executive and legislature and ensure the final responsibility for the support of the judiciary in the independent delivery of justice. (…) taking into account the failure of the HSYK to satisfy the ENCJ that its standards have been complied with, the statements of the HSYK, as well as information from other sources including the reports and statements of the European Parliament, the European Commission, the Human Rights Commissioner of the Council of Europe and Human Rights Watch and the Venice Commission, the ENCJ decided that the actions and decisions of the HSYK, and therefore the HSYK as an institution cannot be seen to be in compliance with European Standards for Councils for the Judiciary. Therefore, the HSYK does not currently comply with the ENCJ Statutes and is no longer an institution which is independent of the executive and legislature ensuring the final responsibility for the support of the judiciary in the independent delivery of justice.” Security of tenure of office is a core element of the independence of a judge and the dismissal of judges should be used only in case of misuse of the exercise of office (e.g. UN Basic principles on the Independence of Judiciary, Opinion para 95, 92, 63, Rec para 49 and 50). However, HSYK adopted a decision with only 62 pages of reasoning sufficient to dismiss thousands of judges. The decision is totally inadequate when the criminal investigations used as motive to sack those judges are still in a pre-trial stage; the principle of the presumption of innocence, which is enshrined in Article 5 of the European Convention for Human Rights (ECHR), was consequently completely ignored, if not violated.

II) In December 9, 2016 an Opinion adopted by the Council of Europe’s constitutional law experts – the Venice Commission – concludes that the Turkish Government implemented its emergency powers through ad hominem Thus, “tens of thousands of public servants” were dismissed on the basis of lists appended to emergency decree laws. Those collective dismissals did not refer to verifiable evidence which related to each individual case. According to the Opinion, the speed with which those lists appeared implies that the collective dismissals were not accompanied even by a minimum of procedural safeguards; those dismissals apparently are not subject to judicial review by the ordinary courts, or, at least, the accessibility of judicial review remains a matter of controversy. Venice Commission concludes that such method of purging the State apparatus creates a strong appearance of arbitrariness. Concerning judges the Opinion could not be clearer: “judges represent a special category of public servants, whose independence is guaranteed at the constitutional and international levels (see the ICCPR, Article 14 § 1, and the ECHR, Article 6 § 1). Therefore, any dismissals within the judiciary or the regulatory bodies of the judiciary should be subjected to particularly exacting scrutiny, even in times of a serious public emergency. Such dismissals not only affect human rights of the individual judges concerned, they may also weaken the judiciary as a whole. Finally, such dismissals may create a ‘chilling effect’ within the judiciary, making other judges reluctant to reverse measures declared under the emergency decree laws out of fear of becoming subjects of such measures themselves.” The European Association of Judges (EAJ), who comprises national associations from 44 countries, along several resolutions and statements, sanctioned the described declarations and concerns. But EAJ is also focused in providing due solidarity to the several thousand judges and prosecutors jailed, dispossessed of their assets, living in a condition that puts in peril even daily survival along with their families. It becomes mandatory to draw attention to persons immersed in such a cruel circumstance experiencing a radical turnaround of their existence after years of having an economic and social status of what had been thought guaranteed by their technical expertise and judicial work. Belonging to an intellectual elite, selected after an appointment procedure based in merit criteria, thousands of judges and prosecutors in Turkey are confronted with a painful daily routine in prison or, if released, confronted with unemployment and again with the arduous mission of providing for the daily survival of their families. All European associations of Judges, along with the judges worldwide, are perfectly alert to the present torment of Turkish judges and prosecutors and rejects to validate a “moral blindness” (to use the expression of Zygmunt Bauman) that ignores human suffering in such difficult times.

As Amartya Sen lucidly wrote in a scenario that utterly applies to the Turkish judiciary nowadays, the reaction from Europe towards the ruthless attacks against judicial independence should not be focused, at least on a short-term basis, on a discussion about how justice finally can be offered to judges and prosecutors in Turkey. That will be a misleading manner to do nothing while speculating on improbable outcomes. The Turkish authorities are not concerned in restore justice to those judges and prosecutors and they will continue to act in the exact same routine irrespective of international clamour. What should be “finely perceived and finely felt” by those who promote the rule of law is the current situation of injustice – vivid and irrefutable – imposing a robust and immediate response. The detention of judges and prosecutors is a disconcerting indication that Turkey is stepping away from democracy; because those who are still in office who have not been suspended or arrested will surely feel pressured to comply with the executive power. The level of injustice – thousands or detentions, cruel treatment if not continuous torture, the seizing of assets in a way that puts at risk the plain survival of their families – is so overwhelming that this commitment must be shared by the main European stakeholders involved in defending a culture of respect for human rights. Each week we receive in our secretariat in Rome many letters written mostly by the wives, sons and daughters of arrested judges and prosecutors; they appeal, in a desperate tone, for help. To the same effect, the “Preliminary observations and recommendations of the United Nations Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment” from Mr. Nils Melzer, on the official visit to Turkey (27 November to 2 December 2016), published a personal appeal to the Turkish Government “to publicly reinforce its ‘zero tolerance’ policy on torture and, in particular, to unequivocally make clear to State officials at all levels that they are expected and, indeed, obliged to report and investigate all allegations of torture and to bring perpetrators to justice.”

Although always resilient and abiding, even hope needs to be nourished with concrete and pragmatic behaviour. Therefore, although facing numerous difficulties to put an effective strategy on the ground, EAJ/IAJ is now involved in providing financial assistance to the families of Turkish judges and prosecutors. The new Fund is composed of donations from national associations of judges or from any other institutions or individual donors. Our certainty relies on the prospect that the present situation is temporary and that inevitably normality will return permitting all those colleagues, helped by their peers, to be reinstated in their judicial duties. But meanwhile it is our duty to do something about it; obeying an ancient lesson of practical conduct, that is enshrined on our European culture, which was advanced many centuries ago by Aristotle’s words: “For the things we have to learn before we can do them, we learn by doing them, e.g. men become builders by building and lyre players by playing the lyre; so too we become just by doing just acts” – Nicomachean Ethics by Aristotle written in 350 B.C.E. The present attitude claims also to challenge others international organizations in Europe; this text, like others similar ones, is an instrument to attend this purpose. The core values that constitute our civilized identity should entail the same collective response. Europe must stand up for its own values – the Turkish judiciary expects no less.[i]

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